T.W. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 11, 2018
• Docket: 27A05-1707-JS-1656
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 11 2018, 8:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David M. Payne Curtis T. Hill, Jr. Ryan & Payne Attorney General of Indiana Marion, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

T.W., April 11, 2018 Appellant-Respondent, Court of Appeals Case No. 27A05-1707-JS-1656 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Brian McLane, Appellee-Plaintiff. Judge Trial Court Cause No. 27D02-1705-JS-84

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A05-1707-JS-1656 | April 11, 2018 Page 1 of 5 Case Summary [1] Sixteen-year-old T.W. appeals the trial court’s true finding for conduct that

would be Class A misdemeanor resisting law enforcement if committed by an

adult. We reverse and remand with instructions.

Issue [2] The sole issue is whether sufficient evidence supports T.W.’s adjudication.

Facts [3] On May 16, 2017, Marion Police Department (“MPD”) Officer Jacob Herbert

was dispatched to check a Grant County house for runaways, including then-

fifteen-year-old T.W. While onsite, he saw several juveniles run out the back

door. Afterwards, assisting Officer Jarod Reel saw T.W., two other female

juveniles, and one male juvenile running approximately one block from the

house. On seeing Officer Reel, the juveniles “began running north across 29th

Street.” Tr. Vol. II p. 7. Officer Reel briefly activated his lights and siren and

shouted for them to stop. One juvenile stopped, but T.W. and the others ran

and jumped over fences to escape. Detective Mitchener, a plain-clothed “off

duty detective [who] happened to be in the area,” and an MPD sergeant

assisted Officer Reel in arresting the juveniles at a nearby water park. Id. at 8.

[4] On May 17, 2017, the State filed a petition alleging that T.W. was a juvenile

delinquent for committing an act that would be Class A misdemeanor resisting

law enforcement if committed by an adult. At the fact-finding hearing on May

24, 2017, Officer Reel testified that T.W. ran from the house and jumped over Court of Appeals of Indiana | Memorandum Decision 27A05-1707-JS-1656 | April 11, 2018 Page 2 of 5 fences before she was apprehended at the Splash House. He testified further

that an assisting plain-clothed officer shouted at the juveniles to get on the

ground, and “they immediately got to the ground.” Id. at 12. T.W. testified

that the juveniles ran because her mother and step-father were at the door. She

testified that she and the others were “running and jumping fences” and

running across the street trying to make it to the trail and a cop, well I don’t even know if it was a cop, because he was in that truck and it had nothing on there, and he was in regular clothes and he was just slowing down staring at us and then we ran into the [water park] and they said get on the ground. [The juveniles complied].

Id. at 17. T.W. testified further that she did not hear or see Officer Reel until

they reached the water park, and that she did not see a marked police car or

activated police lights, and she never heard a siren or a shouted police order to

stop running. It is undisputed that T.W. had no physical contact with any

officer before she was handcuffed at the water park. At the close of the hearing,

the trial court adjudicated T.W. a delinquent and imposed, but stayed, a 90-day

detention, ordering T.W. to serve six months of probation. She now appeals.

Analysis [5] T.W. argues that the evidence is insufficient to support the delinquency

adjudication because the State failed to present evidence of requisite force.

When reviewing a claim of insufficient evidence to support juvenile

delinquency adjudications, we neither reweigh evidence nor reassess witness

credibility; rather, we look only to the probative evidence and reasonable

Court of Appeals of Indiana | Memorandum Decision 27A05-1707-JS-1656 | April 11, 2018 Page 3 of 5 inferences supporting the adjudication to determine whether a reasonable trier

of fact could conclude that the juvenile was guilty beyond a reasonable doubt.

D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans. denied.

[6] The trial court entered a true finding against T.W. for class A misdemeanor

resisting law enforcement. “A person who knowingly or intentionally . . .

forcibly resists, obstructs, or interferes with a law enforcement officer or a

person assisting the officer while the officer is lawfully engaged in the execution

of the officer’s duties . . . commits resisting law enforcement, a Class A

misdemeanor.” Ind. Code § 35-44.1-1-3(a)(1).1 “One ‘forcibly resists’ law

enforcement when strong, powerful, violent means are used to evade a law

enforcement official’s rightful exercise of his or her duties.” Lopez v. State, 926

N.E.2d 1090, 1092 (Ind. Ct. App. 2010) (quoting Spangler v. State, 607 N.E.2d

720, 723 (Ind. 1993)). “[A]ny action to resist must be done with force in order to

violate this statute.” Spangler, 607 N.E.2d at 724, emphasis added.

[7] The State’s evidence at trial here consisted solely of Officer Reel’s testimony

that T.W. ran from the police. No evidence whatsoever was presented that

T.W. used force to evade capture, not to mention “strong, powerful, violent

means.” See Lopez, 926 N.E.2d at 1092. Absent a showing of the requisite

forcible resistance, the delinquency adjudication cannot stand. See id. The

State concedes as much and “agrees that the evidence was insufficient to

1 The State did not allege that T.W. violated Indiana Code Section 35-44.1-1-3(a)(3), which prohibits “flee[ing]” from a law enforcement officer.

Court of Appeals of Indiana | Memorandum Decision 27A05-1707-JS-1656 | April 11, 2018 Page 4 of 5 support [the] true finding[.]” Appellee’s Br. p. 6. We reverse the judgment and

remand with instructions to vacate the adjudication.

Conclusion [8] Insufficient evidence supports T.W.’s delinquency adjudication. We reverse

and remand.

[9] Reversed and remanded with instructions.

Najam, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A05-1707-JS-1656 | April 11, 2018 Page 5 of 5